Richardson v. State

The
Appellant, Derrick Richardson, appeals as of right from the
Hamilton County Criminal Court's judgment summarily
denying his petition for a writ of error coram nobis. The
State has filed a motion to dismiss this appeal due to an
untimely notice of appeal. Following our review, we conclude
that the interest of justice requires a waiver of the timely
filing of the notice of appeal and deny the State's
motion to dismiss. We further conclude, however, that an
opinion in this case would have no precedential value and
affirm the judgment of the coram nobis court pursuant to Rule
20 of the Rules of the Tennessee Court of Criminal Appeals.

Herbert H. Slatery III, Attorney General and Reporter;
Garrett Ward, Assistant Attorney General; and Neil Pinkston,
District Attorney General, for the appellee, State of
Tennessee.

D.
Kelly Thomas, Jr., J., delivered the opinion of the court, in
which Norma McGee Ogle and Robert H. Montgomery, Jr., JJ.,
joined.

MEMORANDUM OPINION

D.
KELLY THOMAS, JR., JUDGE.

Before
the court is the State's motion to dismiss this appeal
based upon the untimely filing of the notice of appeal. The
pro se Appellant seeks an appeal as of right from the coram
nobis court's summary denial of a petition for writ of
error coram nobis. The coram nobis court's order denying
the petition for writ of error coram nobis was filed on June
7, 2018. The pro se Appellant filed a notice of appeal with
this court on July 25, 2018, forty-eight days after the entry
of the coram nobis court's judgment. The pro se Appellant
has not filed a response to the State's motion.

Tennessee
Rule of Appellate Procedure 4(a) provides that "the
notice of appeal required by Rule 3 shall be filed with the
clerk of the appellate court within 30 days after the date of
entry of the judgment." Tenn. R. App. P. 4(a).
"[H]owever, in all criminal cases the 'notice of
appeal' document is not jurisdictional and the timely
filing of such document may be waived in the interest of
justice." Id. The appellant bears the burden of
establishing when the interest of justice mandates waiver of
the timely filing of the notice of appeal. State v. Kevin
Montrell Thompson, E2016-01565-CCA-R3-CD, 2017 WL
262701, at *2 (Tenn. Crim. App. Jan. 20, 2017). That said,
the Appellant has not responded to the State's motion to
dismiss. See State v. Rockwell, 280 S.W.3d 212, 214
(Tenn. Crim. App. 2007) (encouraging litigants to file a
motion seeking permission to waive the timely filing of a
notice of appeal or motion to dismiss prior to assignment to
the court for consideration). In the notice of appeal,
however, the Appellant contends that he did not receive
timely notification of the entry of the coram nobis
court's order denying relief. Under these circumstances,
we conclude that a waiver of the timeliness of the notice of
appeal is warranted. Therefore, the State's motion to
dismiss is DENIED.

Although
we have concluded that the interest of justice requires a
waiver of the timely filing of the notice of appeal, we
further conclude that an opinion in this case would have no
precedential value. See Tenn. Ct. Crim. App. R. 20.
The record reflects that the Appellant was convicted of first
degree felony murder and sentenced to life imprisonment. The
Appellant was convicted based upon a theory of criminal
responsibility for the conduct of another. On direct appeal,
the Appellant did not challenge the sufficiency of the
evidence but raised only one issue concerning the trial
court's jury instructions on criminal responsibility for
the conduct of another. Finding no error, this court affirmed
the Appellant's conviction for first degree felony
murder. State v. Derrick Richardson, No.
03C01-9305-CR-00165, 1994 WL 247114 (Tenn. Crim. App. June 9,
1994), perm. app. denied (Tenn.
Sept. 12, 1994). As this court noted on direct appeal,

There was conflicting testimony. We will attempt to fairly
summarize the facts. In the early morning hours of December
8, 1993, the defendant, Gregory Strong, Stanley Gillespie,
and Calvin Johnson were at or near the Heaton Street
residence of LaKeysh Davis, the mother of Johnson's son.
Apparently upset because Davis' husband had been shot
only a short while earlier, all of the men were armed with
guns. The victim, Louie Dwight, stopped his vehicle,
approached the defendant and Strong as they stood on the side
of the street, and asked to buy drugs. The defendant, armed
with a .38 pistol, and Strong, carrying a pump shotgun, fired
several shots, took the victim's money, and threw his
wallet on the ground.

Johnson testified that he and Gillespie heard the shooting
and approached the scene. Johnson carried an AK47 assault
rifle and Gillespie had a .380 pistol. Each fired shots.
Either the defendant or Stanley Gillespie, or both, shot
the victim in the legs. The victim got into his vehicle to
leave, stopped, and returned to retrieve his wallet. He then
drove away. After a short distance, however, the victim lost
consciousness and wrecked. He died due to multiple gunshot
wounds to his legs.

The Hamilton County Medical Examiner testified that the
victim was struck by three bullets; there were two wounds in
the right leg. A shot to the left leg pierced its main
artery. All shots that struck the defendant were fired by low
velocity weapons: a .38 or a .380.

Ms. Davis stated that the defendant, Gillespie, and Strong
participated in the robbery. She testified that the defendant
held his weapon on the victim, took his wallet, and shot him
in the leg. Strong testified that he and the defendant never
had any kind of agreement to rob the victim and blamed the
defendant for that offense. During the pretrial
investigation, Strong stated that the defendant had shot at
the ...

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